(3) For all purposes of this Part and in all proceedings, a certificate under subsection (1) is conclusive evidence of the matters certified, except so far as the contrary is established.
269TAAC Definition—countervailable subsidy
(1) For the purposes of this Part, a subsidy is a countervailable subsidy if it is specific.
(2) Without limiting the generality of the circumstances in which a subsidy is specific, a subsidy is specific:
(a) if, subject to subsection (3), access to the subsidy is explicitly limited to particular enterprises; or
(b) if, subject to subsection (3), access is limited to particular enterprises carrying on business within a designated geographical region that is within the jurisdiction of the subsidising authority; or
(c) if the subsidy is contingent, in fact or in law, and whether solely or as one of several conditions, on export performance; or
(d) if the subsidy is contingent, whether solely or as one of several conditions, on the use of domestically produced or manufactured goods in preference to imported goods.
(3) Subject to subsection (4), a subsidy is not specific if:
(a) eligibility for, and the amount of, the subsidy are established by objective criteria or conditions set out in primary or subordinate legislation or other official documents that are capable of verification; and
(b) eligibility for the subsidy is automatic; and
(c) those criteria or conditions are neutral, do not favour particular enterprises over others, are economic in nature and are horizontal in application; and
(d) those criteria or conditions are strictly adhered to in the administration of the subsidy.
(4) The Minister may, having regard to:
(a) the fact that the subsidy program benefits a limited number of particular enterprises; or
(b) the fact that the subsidy program predominantly benefits particular enterprises; or
(c) the fact that particular enterprises have access to disproportionately large amounts of the subsidy; or
(d) the manner in which a discretion to grant access to the subsidy has been exercised;
determine that the subsidy is specific.
(5) In making a determination under subsection (4), the Minister must take account of:
(a) the extent of diversification of economic activities within the jurisdiction of the subsidising authority; and
(b) the length of time during which the subsidy program has been in operation.
269TAACA Determination of countervailable subsidy if non‑cooperation by relevant entities
(i) there is an investigation under this Part in relation to whether a countervailing duty notice should be published;
(ii) there is a review under Division 5 in relation to the publication of a countervailing duty notice;
(iii) there is an inquiry under Division 6A in relation to the continuation of a countervailing duty notice; and
(b) the Commissioner is satisfied that an entity covered by subsection (2):
(i) has not given the Commissioner information the Commissioner considers to be relevant to the investigation, review or inquiry within a period the Commissioner considers to be reasonable; or
(ii) has significantly impeded the investigation, review or inquiry;
then, in relation to the investigation, review or inquiry, in determining whether a countervailable subsidy has been received in respect of particular goods, or in determining the amount of a countervailable subsidy in respect of particular goods, the Commissioner or the Minister:
(c) may act on the basis of all the facts available to the Commissioner or the Minister (as the case may be); and
(d) may make such assumptions as the Commissioner or the Minister (as the case may be) considers reasonable.
(2) For the purposes of paragraph (1)(b), the entities are as follows:
(a) any person who is or is likely to be directly concerned with the importation or exportation into Australia of goods to which the investigation, review or inquiry relates or who has been or is likely to be directly concerned with the importation or exportation into Australia of like goods;
(b) the government of the country of export or country of origin:
(i) of goods to which the investigation, review or inquiry relates that have been, or are likely to be, exported to Australia; or
(ii) of like goods that have been, or are likely to be, exported to Australia.
269TAAD Ordinary course of trade
(1) If the Minister is satisfied, in relation to goods exported to Australia:
(a) that like goods are sold in the country of export in sales that are arms length transactions in substantial quantities during an extended period:
(i) for home consumption in the country of export; or
(ii) for exportation to a third country;
at a price that is less than the cost of such goods; and
(b) that it is unlikely that the seller of the goods will be able to recover the cost of such goods within a reasonable period;
the price paid for the goods referred to in paragraph (a) is taken not to have been paid in the ordinary course of trade.
(2) For the purposes of this section, sales of goods at a price that is less than the cost of such goods are taken to have occurred in substantial quantities during an extended period if the volume of sales of such goods at a price below the cost of such goods over that period is not less than 20% of the total volume of sales over that period.
(3) Costs of goods are taken to be recoverable within a reasonable period of time if, although the selling price of those goods at the time of their sale is below their cost at that time, the selling price is above the weighted average cost of such goods over the investigation period.
(4) The cost of goods is worked out by adding:
(a) the amount determined by the Minister to be the cost of production or manufacture of those goods in the country of export; and
(b) the amount determined by the Minister to be the administrative, selling and general costs associated with the sale of those goods.
(5) Amounts determined by the Minister for the purposes of paragraphs (4)(a) and (b) must be worked out in such manner, and taking account of such factors, as the regulations provide in respect of those purposes.
269TAA Arms length transactions
(1) For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:
(a) there is any consideration payable for or in respect of the goods other than their price; or
(b) the price appears to be influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or
(c) in the opinion of the Minister the buyer, or an associate of the buyer, will, subsequent to the purchase or sale, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.
(1A) For the purposes of paragraph (1)(c), the Minister must not hold the opinion referred to in that paragraph because of a reimbursement in respect of the purchase or sale if the Minister is of the opinion that the purchase or sale will remain an arms length transaction in spite of the payment of that reimbursement, having regard to any or all of the following matters:
(a) any agreement, or established trading practices, in relation to the seller and the buyer, in respect of the reimbursement;
(b) the period for which such an agreement or practice has been in force;
(c) whether or not the amount of the reimbursement is quantifiable at the time of the purchase or sale.
(2) Without limiting the generality of subsection (1), where:
(a) goods are exported to Australia otherwise than by the importer and are purchased by the importer from the exporter (whether before or after exportation) for a particular price; and
(b) the Minister is satisfied that the importer, whether directly or through an associate or associates, sells those goods in Australia (whether in the condition in which they were imported or otherwise) at a loss;
the Minister may, for the purposes of paragraph (1)(c), treat the sale of those goods at a loss as indicating that the importer or an associate of the importer will, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or a part of the price.
(3) In determining, for the purposes of subsection (2), whether goods are sold by an importer at a loss, the Minister shall have regard to:
(a) the amount of the price paid or to be paid for the goods by the importer; and
(b) such other amounts as the Minister determines to be costs necessarily incurred in the importation and sale of the goods; and
(c) the likelihood that the amounts referred to in paragraphs (a) and (b) will be able to be recovered within a reasonable time; and
(d) such other matters as the Minister considers relevant.
(4) For the purposes of this Part, 2 persons shall be deemed to be associates of each other if, and only if:
(a) both being natural persons:
(i) they are members of the same family; or
(ii) one of them is an officer or director of a body corporate controlled, directly or indirectly, by the other;
(b) both being bodies corporate:
(i) both of them are controlled, directly or indirectly, by a third person (whether or not a body corporate); or
(ii) both of them together control, directly or indirectly, a third body corporate; or
(iii) the same person (whether or not a body corporate) is in a position to cast, or control the casting of, 5% or more of the maximum number of votes that might be cast at a general meeting of each of them; or
(c) one of them, being a body corporate, is, directly or indirectly, controlled by the other (whether or not a body corporate); or
(d) one of them, being a natural person, is an employee, officer or director of the other (whether or not a body corporate); or
(e) they are members of the same partnership.
Note: In relation to the reference to member of a family in subparagraph (4)(a)(i), see also section 4AAA.
269TAB Export price
(1) For the purposes of this Part, the export price of any goods exported to Australia is:
(a) where:
(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and
(ii) the purchase of the goods by the importer was an arms length transaction;
the price paid or payable for the goods by the importer, other than any part of that price that represents a charge in respect of the transport of the goods after exportation or in respect of any other matter arising after exportation; or
(b) where:
(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and
(ii) the purchase of the goods by the importer was not an arms length transaction; and
(iii) the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer;
the price at which the goods were so sold by the importer to that person less the prescribed deductions; or
(c) in any other case—the price that the Minister determines having regard to all the circumstances of the exportation.
(2) A reference in paragraph (1)(b) to prescribed deductions in relation to a sale of goods that have been exported to Australia shall be read as a reference to:
(a) any duties of Customs or sales tax paid or payable on the goods; and
(b) any costs, charges or expenses arising in relation to the goods after exportation; and
(c) the profit, if any, on the sale by the importer or, where the Minister so directs, an amount calculated in accordance with such rate as the Minister specifies in the direction as the rate that, for the purposes of paragraph (1)(b), is to be regarded as the rate of profit on the sale by the importer.
(2A) If an export price of goods exported to Australia is being ascertained for the purposes of conducting a review of anti‑dumping measures under Division 5, the price may, despite subsection (1), be determined by the Minister in accordance with subsection (2B) if:
(a) the price is being ascertained in relation to an exporter of those goods (whether the review is of the measures as they affect a particular exporter of those goods, or as they affect exporters of those goods generally); and
(b) the Minister determines that there is insufficient or unreliable information to ascertain the price due to an absence or low volume of exports of those goods to Australia by that exporter having regard to the following:
(i) previous volumes of exports of those goods to Australia by that exporter;
(ii) patterns of trade for like goods;
(iii) factors affecting patterns of trade for like goods that are not within the control of the exporter.
Note: If there is an absence of exports of those goods to Australia by that exporter, the Minister may deem such exports to have taken place for the purposes of ascertaining an export price: see subsection (2C).
(2B) For the purposes of subsection (2A), the export price of those goods is the price determined by the Minister to be the export price, having regard to any of the following:
(a) the export price for the goods exported to Australia by the exporter established in accordance with subsection (1) of this section for a decision of a kind mentioned in subsection (2D);
(b) the price paid or payable for like goods sold by the exporter in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country;
(c) the export price for like goods exported to Australia from the country of export by another exporter or exporters established in accordance with subsection (1) of this section for a decision mentioned in subsection (2D).
(2C) For the purposes of conducting the review of anti‑dumping measures under Division 5, if there is an absence of exports of those goods to Australia by the exporter, the Minister may deem such exports to have occurred for the purposes of applying subsections (2A) and (2B) of this section.
(2D) For the purposes of paragraphs (2B)(a) and (c), the decisions are the following:
(a) deciding to publish a notice under any of the following provisions:
(i) subsection 269TG(1) or (2) (dumping duties);
(ii) subsection 269TJ(1) or (2) (countervailing duties);
(iii) subsection 269ZDB(1) (reviews of anti‑dumping measures);
(vi) subsection 269ZHG(1) (continuation of anti‑dumping measures);
(b) any other decision under this Act of a kind prescribed by the regulations.
(2E) For the purposes of paragraph (2B)(c), the decision must be a decision made during the period:
(a) beginning 2 years before the day the Commissioner published notice of the review under subsection 269ZC(4), (5) or (6); and
(b) ending on the day notice of the review is published under subsection 269ZDB(1).
(2F) Without limiting the generality of the matters that may be taken into account by the Minister in determining whether a third country is an appropriate third country for the purposes of paragraph (2B)(b), the Minister may have regard to the following matters:
(a) whether the volume of trade from the country of export to the third country is similar to the volume of trade from the country of export to Australia;
(b) whether the nature of the trade in goods concerned between the country of export and the third country is similar to the nature of trade between the country of export and Australia.
(2G) If the export price of goods exported to Australia has been ascertained under subsection (2B), the export price may be subject to such adjustments that the Minister determines are necessary to reflect what the export price would have been had there not been an absence or low volume of exports, including:
(a) adjustments due to exports (on which the export price is based) relating to earlier times; or
(b) adjustments due to exports (on which the export price is based) relating to not identical goods.
(3) Where the Minister is satisfied that sufficient information has not been furnished, or is not available, to enable the export price of goods to be ascertained under the preceding subsections, the export price of those goods shall be such amount as is determined by the Minister having regard to all relevant information.
(4) For the purposes of this section, the Minister may disregard any information that he or she considers to be unreliable.
(5) Paragraphs (1)(a) and (b) apply in relation to a purchase of goods by an importer from an exporter whether or not the importer and exporter are associates of each other.
(6) For the purposes of paragraphs (1)(a) and (2B)(b), the reference in those paragraphs to the price paid or payable for goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of that transaction.
269TAC Normal value of goods
(1) Subject to this section, for the purposes of this Part, the normal value of any goods exported to Australia is the price paid or payable for like goods sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter or, if like goods are not so sold by the exporter, by other sellers of like goods.
(1A) For the purposes of subsection (1), the reference in that subsection to the price paid or payable for like goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of the sales.